Statements To FBI In Criminal Case Not Protected By First Amendment

Under the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), the free speech guarantees of the First Amendment provide no protection to public employees who make statements as part of their jobs. The Garcetti decision has a broad swath, and applies to a wide variety of statements public safety employees make as part of their job.

Robert Watts is an officer employed by the City of Jackson, Mississippi. Prior to July 2008, Watts was assigned to Downtown Patrol, Special Projects, working Monday through Friday, 7:00 a.m. to 3:00 p.m. By all accounts, the shift was desirable. At some point, the Federal Bureau of Investigation contacted Watts regarding potential illegal activity on the part of then mayor of Jackson, Mississippi, Frank Melton. That investigation led to a federal indictment against the mayor.

According to Watts, Melton confronted him two days after being indicted. In an exchange caught on tape by a local reporter, Melton tells Watts: “I hear you have been running your damn mouth, but that is okay, I got you later, and you’ll learn that.” Within about a week, Watts learns from a supervisor that he would be transferred to Precinct 2, Patrol Division “Charley Shift,” which runs from 10:00 p.m. to 6:00 a.m. His off days were moved from the weekend to Tuesday and Wednesday.

Aggrieved by this transfer, Watts sued the City alleging retaliation for his exercise of his First Amendment rights. The essence of Watt’s claim was that the City retaliated against him for giving the statement to the FBI.

Watts ran headlong into the Garcetti rule. In dismissing his claim, a federal court pointed to a Mississippi statute defining the primary responsibility of police officers as “the prevention and detection of crime, the apprehension of criminals and the enforcement of the criminal and traffic laws of this state and/or the ordinances of any political subdivision thereof. The Manual of the Jackson Police Department states: ‘Officers shall cooperate with all governmental agencies by providing whatever aid or information such agencies are entitled to receive.’

“The Manual is narrowly tailored and states that officers shall cooperate with agencies like the FBI. There is no record suggesting that Watts perceived a tacit policy of rejecting the formal duty. Instead, the record reflects that officers cooperate with the FBI on a weekly basis. This duty to cooperate and provide information also distinguishes those cases turning on the external nature of the communication, because Watts had a duty to communicate outside the normal chain of command. The FBI was a fellow law-enforcement agency, the Manual required cooperation and disclosure of information, and such cooperation routinely occurred.

“According to his affidavit, the FBI approached Watts, he did not approach them. This fact distinguishes those cases exploring Garcetti in the context of whistle-blowers who discover malfeasance and externally report it with no official duty to do so. Here, Watts had a duty to cooperate when contacted by the FBI.

“Finally, even if he was not required to speak, speech that owes its existence to a public employee’s professional responsibilities is not protected under Garcetti. In sum, Watts was required to cooperate with the FBI when contacted and share information. And he has otherwise failed in his burden of showing that he acted as a citizen and not in the course of performing his job as a law-enforcement officer.”

Watts v. City of Jackson, 2011 WL 5122609 (S.D. Miss. 2012).